Arbitrator: City used "circular reasoning" to justify turnarounds

Mayor Michael Bloomberg’s testimony before an arbitrator drove one nail into the coffin of the city’s plans to replace or rehire teachers at 24 “turnaround” schools.

Last week an arbitrator determined that the city violated the city’s contracts with the teachers and principals unions when it moved to replace staff members at the schools. This afternoon the arbitrator, Scott Buchheit, released a detailed explanation of why he ruled the way he did.

The city was trying to use hiring procedures set for closing schools and their replacements. But the unions argued that the turnaround plans were “sham closures” that would not result in new schools. Instead, they argued, the city was unfairly using contractual provisions about “excessing” to remove teachers and administrators it deemed unsatisfactory.

In upholding the unions’ grievance, Buchheit at times turns Bloomberg’s and other city officials’ words against them.

He quotes a 2011 memorandum written by the Department of Education’s chief financial officer, which said, “excessing is not a permissible way to deal with unsatisfactory teachers.”

Yet city officials said they intended to do just that from the start of the turnaround process, Buchheit determined.

When he first announced the turnaround plans during his State of the City Address in January, Bloomberg “repeatedly made clear that the DOE’s new plan concerning the 24 (then 33) schools was based upon the desire to change staffing in the classroom,” Buchheit writes. He quotes Bloomberg saying, “Under this process, the best teachers stay; the least effective go.”

The arbitrator notes that Bloomberg has frequently expressed his distaste for the current process for shedding teachers from schools that are contracting, which is based on seniority, not job performance. “Suffice it to say that at the arbitration hearing the Mayor reaffirmed his dislike,” Buchheit writes.

Buchheit emphasized that he was not passing judgment on the value of the city’s plans for the schools, which State Education Commissioner John King approved in late June. And he said nothing in his decision would prevent the city from continuing with portions of the plans that do not involve using the hiring rules that take effect when schools are closed.

Those rules, outlined in a clause in the teachers union contract known as 18D, call for closing schools to set up hiring committees to review current teachers who apply for jobs at the replacement schools. According to 18D, the committees must hire back at least half of them of the qualified applicants from each school. City officials and school administrators began carrying out 18D procedures in the 24 schools last month with the understanding that the arbitrator could ultimately reverse it.

Department of Education officials had said they were confident that King’s approval of the reform plans would prove that the 24 schools were truly being closed. But Buchheit said King’s decision did not necessarily mean the schools were being closed and replaced with new schools. “New,” he said, typically means “never existing before,” which would not be the case for the 24 schools.

“The evidence here establishes that much would remain the same in the 24 new schools,” he wrote, including the schools’ buildings, student populations, courses, partnering organizations, and, for 18 of them, their principals. He also noted that many of the schools’ new names would still contain the old names, such as August Martin High School, which would change to “The School of Opportunities at the August Martin Campus.”

Deputy Chancellor Marc Sternberg also suggested that the school closings were inauthentic, the arbitrator concludes, when he wrote in a memorandum to principals shortly after Bloomberg’s speech explaining that their schools would be closed “as a technical matter.”

For the schools to be truly new, Buchheit says, much would have to change, including their overall educational visions and leadership. Instead, the biggest change the city cited was the planned staffing change — but that change could only happen, he notes, if the schools were new.

“The DOE cannot use the end result of Article 18D being invoked as justification for why it is permitted to invoke 18D,” Buchheit writes. “I cannot adopt this circular reasoning for the purposes of contract interpretation.”

On Monday, Bloomberg said the city would appeal Buchheit’s ruling because the arbitrator had not yet explained his rationale. But after reading the opinion, city attorney Georgia Pestana said the city will not withdraw its appeal, which it filed in State Supreme Court on Monday. “The arbitrator clearly exceeded his authority,” she said.

The city had argued that the unions’ grievances were not arbitrable at all. In his opinion, Buchheit rejects each of the city’s three arguments for why the grievance should not be subject to binding arbitration.

Denver superintendent sheds light on school closure recommendations, what happens next

While the criteria for Denver school closure recommendations is clearer than ever before, that hasn’t made this week’s emotional conversations at the three low-performing elementary schools facing that fate any easier, Superintendent Tom Boasberg said Friday.

“For school leaders and teachers, they care incredibly deeply about their schools and their kids and they’re very, very committed to them,” Boasberg told Chalkbeat.

“People have respected that there is a clear and transparent process at the intellectual level — and at the emotional level, they’re still very concerned about the changes.”

The school board is scheduled to vote Thursday on the recommendations, which were made under a new district policy adopted last year and put into effect for the first time this fall.

If the board approves the closures, Amesse and Greenlee would stay open through the end of this school year, 2016-17, and the next school year, 2017-18, Boasberg said.

Each school would be replaced by a new model the following year, 2018-19, he said. The board would choose those models in June 2017 and then give the leaders an entire year to plan — a “year zero” — before asking them to take over in the fall of 2018. Boasberg said the current leaders of Amesse and Greenlee would be welcome to submit plans to reinvent the schools.

The principals at the three schools either declined or did not respond to interview requests.

Walking her second-grader, Clifford, out of Amesse on Friday, parent Sheila Epps voiced her frustration with the district’s closure recommendation. She said in her experience, Amesse is a good school, helping her son get to grade level in reading, writing and math.

She scoffed at what she called DPS’s intense focus on “test scores, test scores, test scores,” saying the district should “stop worrying about rankings” and focus on educating each child.

“As a parent, you feel like there’s nothing you can do,” Epps said. “It’s all up to the district. It’s almost not even worth talking about. It’s like, ‘Now what?’”

The district is recommending a different path for Gilpin. Because of low enrollment projections, Gilpin would close at the end of this school year and not be replaced, Boasberg said.

Students would be guaranteed a seat at one of four neighborhood schools next year: Cole Arts and Science Academy, Whittier ECE-8, University Prep or the Downtown Denver Expeditionary School, said Brian Eschbacher, the district’s director of planning and enrollment services. The district would also work with its other Montessori elementary schools to give priority to Gilpin students wishing to continue a Montessori education, he said.

Gilpin’s enrollment is down 30 percent this year from 2013, which is in line with an overall trend in the Five Points neighborhood in northeast Denver, where Gilpin is located, Eschbacher said.

Neighborhood birth rates are also down, meaning there isn’t a big group of infants and toddlers waiting in the wings, and DPS already has 1,000 empty seats in the area, he added.

Said Boasberg: “Even if Gilpin had not been designated under (the policy), we would have either this year or next year … been in a situation where one of the elementary schools in that area would have had to close because of the decline of school-aged kids.”

At 202 students this year, Gilpin is the second-smallest elementary school in the district, Boasberg said. That causes a financial crunch because schools are funded on a per-pupil basis. He said the district is providing Gilpin with an extra $600,000 this year to ensure it’s able to provide smaller class sizes, more teacher aides in the classroom, more staff members to support students’ mental health and a broader array of arts and music offerings.

“We always want to see our schools succeed and we’ve worked hard to provide supports and resources in these cases,” Boasberg said, referring to all three schools recommended for closure. “But while there have been improvements in the schools, we’re not seeing — and haven’t seen now for some time — the kind of growth the kids in the schools need.”

Monica Lubbert lives across the street from Gilpin and sent her third-grade daughter there for several years before pulling her out last year after spring break. Her daughter had fallen behind academically and Lubbert said she didn’t feel the struggling school was capable of catching her up — a shortcoming for which she believes the school district and community share the blame.

“This is not the teachers that did anything wrong. This is not the kids that did anything wrong,” Lubbert said. Instead, she said the district didn’t follow best practices years ago when it converted Gilpin to a Montessori school. “This was the complete … mismanagement of DPS.”

Lubbert also partly attributed the school’s troubles to the fact that many kids who live in the neighborhood go to school elsewhere, as is allowed under the district’s school choice policy. District statistics show 64 percent of children who live in the school’s boundary choiced out this year. Lubbert’s own daughter is attending a private Montessori school.

“This community has gone above and beyond to make every single home in the neighborhood a historically designated home,” she said. But no one seems to care about the school, she added. “How does the community grow and thrive without a school for the kids?”

Boasberg admitted that the district learned some hard lessons over the years about how best to restart low-performing schools, which is what happened at Gilpin. But he said the new policy in effect this year represents a better way to do things.

As for what will happen to the centrally located Gilpin building if the board closes the school, Boasberg said DPS would like for it to remain a school. While the neighborhood doesn’t need any more elementaries, he said the preliminary thinking is to convert it into a secondary school that could draw students from across the city, as Denver School of the Arts, Denver Center for International Studies and Girls Athletic Leadership Academy currently do.

Crystal Bailey’s son came home from school recently with a dirty uniform. Before she could fuss at him, he explained it was muck from science class.

“He’s like, ‘Guess what I learned?’ How could I be mad at that?” Bailey said.

She and dozens of other parents gathered at a public hearing Thursday night to protest plans to merge and rezone their school, P.S. 241 STEM Institute of Manhattan in Harlem.

For parents, elected officials and advocates, the plan in Harlem has grown to symbolize larger issues: school segregation and the impact of charter schools.

“This is an equity issue,” said Emmaia Gelman, a member of the group New York City Public School Parents for Equity and Desegregation.

The Department of Education has proposed to merge P.S. 241 with P.S. 76 A. Philip Randolph, and to redraw the school lines around P.S. 241. Under the plan, families currently zoned for P.S. 241 would be distributed among other local schools: P.S. 76, P.S. 180, P.S. 185/P.S. 208.

“Why do you want to unravel this institution, rather than strengthen it?” Maria Garcia, who has two children at P.S. 241, asked at Thursday’s hearing.

The proposal comes on the heels of another contentious rezoning in District 3, which spans from the Upper West Side to 122nd Street in Harlem. Both plans have highlighted stark differences among the area’s schools.

For more than a year, parents railed against plans to redraw school boundaries on the Upper West Side, where students are packed into high-performing schools. In Harlem, a rezoning plan was presented just weeks before a final vote was expected — and only after the Department of Education proposed to merge a school that has struggled with enrollment and performance on state tests.

Enrollment at P.S. 241 has hovered around 100 students in recent years, despite a federal magnet grant designed to attract families — and integrate the school — by offering a curriculum in science, technology, engineering and math. The school has seen a small uptick in enrollment recently, but parents say it has been squeezed by two charter schools that share its building.

“Why do we have to go?” asked Tasha Clarke, who has two sons at P.S. 241.

The merger and rezoning rely on two separate processes. The citywide Panel for Educational Policy is scheduled to vote on the merger in January.

The District 3 Community Education Council must ultimately vote on the rezoning. Though a vote is scheduled for Dec. 14, council members have begun to voice reservations about the plan.

“Anybody who thinks that this council has decided to vote to approve this is sorely mistaken,” council President Joe Fiordaliso said at the hearing.

Council members shared data they compiled that shows declining enrollment in the area’s schools and growing charter enrollment.

“We’re in crisis,” said council member Daniel Katz.

This isn’t the first time P.S. 241 has fought to keep its doors open. The DOE tried in 2009 to close the school and replace it with charters.

The New York Civil Liberties Union and teachers union sued, arguing that by closing a zoned school, the department was essentially redrawing attendance boundaries. That falls under the purview of Community Education Councils, which vote on all zoning decisions.

Soon after the suit was filed, the DOE dropped its plans to shutter P.S. 241. But CEC member Noah Gotbaum thinks the same issues apply to the proposed merger — and therefore the council could play a crucial role in determining the school’s fate.

“I think we on the CEC need to look at the merger very, very carefully and essentially make a decision on it,” he told Chalkbeat, “and not say that we don’t have the power or the right.”